Citation Nr: 0914998
Decision Date: 04/22/09 Archive Date: 04/29/09
DOCKET NO. 06-28 408 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss
2. Entitlement to service connection for tinnitus.
3. Entitlement to service connection for residuals of cold
injuries, bilateral feet.
4. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
L. A. Rein, Counsel
INTRODUCTION
The Veteran had active military service from April 1953 to
March 1955.
These matters come to the Board of Veterans' Appeals (Board)
on appeal from a rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Pittsburgh,
Pennsylvania.
FINDINGS OF FACT
1. All notification and development action needed to fairly
adjudicate each claim on appeal has been accomplished.
2. There is no competent medical evidence indicating that
the Veteran currently has bilateral hearing loss, residuals
of cold injuries of both feet, or PTSD.
3. There is no competent medical evidence indicating that
the Veteran currently has tinnitus, or that complaints of
tinnitus are related to service.
CONCLUSIONS OF LAW
1. The criteria for service connection for bilateral hearing
loss are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107
(West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 3.303,
3.385 (2008).
2. The criteria for service connection for tinnitus are not
met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 &
Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2008).
3. The criteria for service connection for residuals of cold
injuries, bilateral feet are not met. 38 U.S.C.A. §§ 1110,
5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§
3.102, 3.159, 3.303 (2008).
4. The criteria for service connection for PTSD are not met.
38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp.
2008); 38 C.F.R. §§ 3.102, 3.159, 3.303, (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), codified
at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and
5126 (West 2002 & Supp. 2008) includes enhanced duties to
notify and assist claimants for VA benefits. VA regulations
implementing the VCAA have been codified, as amended at 38
C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2008).
Notice requirements under the VCAA essentially require VA to
notify a claimant of any evidence that is necessary to
substantiate the claim, as well as the evidence that VA will
attempt to obtain and which evidence he or she is responsible
for providing. See, e.g., Quartuccio v. Principi, 16 Vet.
App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in
Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a
substantially complete application for benefits is received,
proper VCAA notice must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
(3) that the claimant is expected to provide; and (4) must
ask the claimant to provide any evidence in her or his
possession that pertains to the claim, in accordance with 38
C.F.R. § 3.159(b)(1).
The Board notes that, effective May 30, 2008, 38 C.F.R. §
3.159 has been revised, in part. See 73 Fed. Reg. 23,353-
23,356 (April 30, 2008). Notably, the final rule removes the
third sentence of 38 C.F.R. § 3.159(b)(1), which had stated
that VA will request that a claimant provide any pertinent
evidence in his or her possession.
VA's notice requirements apply to all five elements of a
service connection claim: Veteran status, existence of a
disability, a connection between the Veteran's service and
the disability, degree of disability, and effective date of
the disability. Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006).
VCAA-compliant notice must be provided to a claimant before
the initial unfavorable decision on a claim for VA benefits
by the agency of original jurisdiction. Id; Pelegrini, 18
Vet. App. at 112. See also Disabled American Veterans v.
Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir.
2003). However, the VCAA notice requirements may,
nonetheless, be satisfied if any errors in the timing or
content of such notice are not prejudicial to the claimant.
Id.
In this appeal, a June 2004 pre-rating letter provided notice
to the Veteran of the evidence and information needed to
substantiate his claims for service connection on appeal.
This letter also informed the Veteran of what information and
evidence must be submitted by the Veteran, and what
information and evidence would be obtained by VA. The letter
further requested that the Veteran submit any additional
information or evidence in his possession that pertained to
his claims. The December 2004 RO rating decision reflects
the initial adjudication of each of the claims for service
connection on appeal. Hence, the June 2004 letter-which
meets all four of Pelegrini's content of notice requirement-
also meets the VCAA's timing of notice requirement.
While the Veteran was not provided information regarding
disability ratings and effective dates until a March 2006
notice letter, on these facts, such omission is not shown to
prejudice the Veteran. As the Board's decision herein denies
each of the claims for service connection on appeal, no
disability rating or effective date is being, or is to be,
assigned. Hence, there is no possibility of prejudice to the
Veteran under the notice requirements of Dingess/Hartman.
Additionally, the record also reflects that VA has made
reasonable efforts to obtain or to assist in obtaining all
relevant records pertinent to the matter on appeal. Pertinent
medical evidence of record includes the Veteran's March 1955
separation physical examination and VA medical records. Also
of record and considered in connection with the appeal are
various written statements provided by the Veteran as well as
by his representative, on his behalf.
Additionally, it appears that, except for the Veteran's March
1955 separation physical examination associated with the
claims file, his service treatment records for his active
military service may be unavailable, due to an accidental
fire at the National Personnel Records Center. The Board
wishes to make it clear that it understands that the Court
has held that, in cases where records once in the hands of
the Government are missing, the Board has a heightened
obligation to explain its findings and conclusions and to
consider carefully the benefit-of-the-doubt rule. See O'Hare
v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v.
Derwinski, 2 Vet. App. 83, 85 (1992). The Board's analysis
herein has been undertaken with this heightened duty in mind.
The case law does not, however, lower the legal standard for
proving a claim for service connection, but rather increases
the Board's obligation to evaluate and discuss in its
decision all of the evidence that may be favorable to the
appellant. See Russo v. Brown, 9 Vet. App. 46, 51 (1996).
Moreover, no further development to create any additional
evidence for consideration in connection with any of the
claims on appeal is warranted, even though the Veteran's
representative contends in a September 2006 written statement
that a VA examination to provide a diagnosis and nexus
opinion for each claimed disability is warranted. As
explained in more detail below, the claims for service
connection are being denied because there is no medical
evidence whatsoever that the Veteran currently has any of the
claimed disabilities on appeal, or in the matter of his claim
for tinnitus, evidence of a current disability linked to
service. As the current record does not reflect even a prima
facie claim for service connection, there is no requirement
for VA to arrange for a medical examination and/or to obtain
a medical opinion in connection with the claims being denied.
See 38 U.S.C.A. § 5103A(d); Wells v. Principi, 326 F. 3d.
1381, 1384 (Fed. Cir. 2003). See also Duenas v. Principi, 18
Vet. App. 512 (2004) (per curium).
In summary, the duties imposed by the VCAA have been
considered and satisfied. Through various notices of the RO,
the appellant has been notified and made aware of the
evidence needed to substantiate the claims herein decided,
the avenues through which he might obtain such evidence, and
the allocation of responsibilities between himself and VA in
obtaining such evidence. There is no additional notice that
should be provided, nor is there any indication that there is
additional existing evidence to obtain or development
required to create any additional evidence to be considered
in connection with any claim(s). Consequently, any error in
the sequence of events or content of the notice is not shown
to prejudice the appellant or to have any effect on the
appeal. Any such error is deemed harmless and does not
preclude appellate consideration of the matters herein
decided, at this juncture. See Mayfield v. Nicholson, 20 Vet.
App. 537, 543 (2006) (rejecting the argument that the Board
lacks authority to consider harmless error). See also ATD
Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).
II. Service Connection
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated during
service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Such a
determination requires a finding of current disability that
is related to an injury or disease in service. Watson v.
Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet.
App. 141, 143 (1992). Service connection may be granted for
a disability diagnosed after discharge, when all the
evidence, including that pertinent to service, establishes
that the disability is due to disease or injury that was
incurred or aggravated in service. 38 C.F.R. § 3.303(d).
In order to establish service connection for a claimed
disorder, there must be (1) medical evidence of current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability. See Hickson v. West, 12 Vet. App. 247, 253
(1999).
The existence of a current disability is the cornerstone of a
claim for VA disability compensation. See Degmetich v.
Brown, 104 F. 3d 1328 (1997); see also Gilpin v. West, 155
F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App.
223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144
(1992).
As noted above, in light of the possibility that some of the
Veteran's STRs are missing, judicial case law increases the
Board's obligation to evaluate and discuss in its decision
all of the evidence that may be favorable to the appellant;
however, it does not lower the legal standard for proving a
claim for service connection. See Russo v. Brown, supra.
It is indeed unfortunate that some of the Veteran's STRs
records may be unavailable. However, the initial requirement
for establishing a valid claim for service connection
consists of evidence of a current disability, as mentioned,
and with regard to the Veteran's claimed tinnitus, bilateral
hearing loss, residuals of cold injuries to the bilateral
feet, and PTSD, this objective criterion has not been met.
A. Bilateral hearing loss
For the purposes of applying the laws administered by VA,
impaired hearing will be considered to be a disability when
the auditory threshold in any of the frequencies at 500,
1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or
when the auditory thresholds for at least three of the
frequencies at 500, 1000, 2000, 3000, or 4000 Hertz are 26
decibels or greater; or when speech recognition scores using
the Maryland CNC Test are less than 94 percent. 38 C.F.R. §
3.385. Even though disabling hearing loss is not demonstrated
at separation, a Veteran may, nevertheless, establish service
connection for a current hearing disability by submitting
evidence that a current disability is related to service.
Hensley v. Brown, 5 Vet. App. 155 (1993).
Initially, the Board notes that the Veteran's March 1955
separation examination report indicates normal bilateral
hearing, with a result of 15/15 for both ears using both
whispered and spoken voice tests. There were no complaints
or findings pertaining to the Veteran's hearing noted and his
ears were evaluated as clinically normal.
However, the absence of in-service evidence of hearing loss
is not fatal to a claim for service connection. See Ledford
v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence
of a current hearing loss disability (i.e., one meeting the
requirements of section 3.385, as noted above) and a
medically sound basis for attributing such disability to
service may serve as a basis for a grant of service
connection for hearing loss. See Hensley v. Brown, 5 Vet.
App. 155, 159 (1993).
In this regard, there are no records showing continued
complaints or treatment for bilateral hearing loss following
separation from service. VA outpatient treatment records from
May 2003 to April 2004 reflect no complaints, findings or
diagnoses for any hearing loss, to include an absence of any
audiometric reports. The Board also notes that in September
2005, the Veteran submitted a VA Form 21-4142 in which he
indicated that he received medical treatment for his ears
from 1955 to 1977, and that these private medical records
were unavailable. More significantly, the Veteran has not
identified receiving current treatment for bilateral hearing
loss.
Accordingly, there is no evidence that the Veteran currently
has any hearing loss disability that meets the criteria set
forth in 38 C.F.R. § 3.385. Therefore, the appellant's claim
for service-connected disability benefits for bilateral
hearing loss cannot be granted. See Brammer, supra.
B. Tinnitus
After having carefully reviewed the evidence of record, the
Board finds that the preponderance of the evidence is against
the grant of service connection for tinnitus. The Veteran
claimed service connection for tinnitus in his April 2004
application for VA compensation benefits. However, there is
no competent evidence of a diagnosis of tinnitus in the
record. As noted above, the Veteran is not competent to
provide such a diagnosis. See Espiritu, supra. Thus,
without competent evidence that the Veteran has tinnitus, the
claim cannot be granted. See Brammer, 3 Vet. App. at 225;
Rabideau, 2 Vet. App. at 143-44.
However, since tinnitus is a subjective disability, it is
possible that the Veteran's report of tinnitus could be
indicative of current disability. Even if the Board accepted
that the Veteran has a current diagnosis of tinnitus, there
is a lack of competent evidence that tinnitus is related to
the Veteran's service to include evidence of continuity of
symptomatology. As noted above, the Veteran first reported
tinnitus in April 2004, contemporaneous with his claim for VA
compensation benefits. The Board further notes that there
are no records showing continued complaints or treatment for
ringing in the ears (tinnitus) following separation from
service. Importantly, no medical professional has provided a
nexus between the Veteran's post service report of tinnitus
and service. Accordingly, for the reasons stated above, the
Board finds that service connection for tinnitus is not
warranted.
C. Residuals of cold injuries, bilateral feet
Initially, the Veteran's March 1955 separation examination
does not demonstrate treatment for or a diagnosis of a
bilateral foot disorder. His separation physical examination
is negative for musculoskeletal defects and shows that his
feet were evaluated as clinically normal. Post-service VA
medical records are negative for complaints or treatment for
the Veteran's feet. There is only reference to knee
disorders and related gout. Accordingly, the Board finds
that there is no indication in any objective medical evidence
associated with the claims file that the Veteran currently
has bilateral feet disabilities, to include residuals of cold
injuries, and neither the Veteran nor his representative has
presented, identified, or even alluded to the existence of
any such evidence.
In the instant case, the claim for service connection for
residuals of cold injuries, bilateral feet must be denied
because the first essential criterion for a grant of service
connection-evidence of a current disability upon which to
predicate a grant of service connection-has not been met.
See Brammer, supra.
D. PTSD
A review of the evidence of record demonstrates that no PTSD
was found on separation from service, and it was noted under
psychiatric that the Veteran was evaluated as clinically
normal. Moreover, in the VA medical records dated after the
Veteran's separation from service, there was no showing that
the Veteran had PTSD. The only indication that the Veteran
had a psychiatric disorder was found in an October 1973 VA
hospital record which concluded that after the Veteran was
involved in a 1973 automobile accident, the Veteran developed
phobic fears. He was diagnosed with neurosis with marked
anxiety and phobic features. An April 1976 VA examination
report also noted that the Veteran reported after his 1973
automobile accident he developed severe fears of various
situations. The diagnosis was depression severe endogenous
various manifestations of withdrawal and panic state. In
addition, an April 2004 VA outpatient record notes that
screening for PTSD was negative. Furthermore, neither the
Veteran nor his representative has submitted any evidence
even suggesting that the Veteran currently has PTSD.
Although the Veteran reported treatment for a mental disorder
by the VA from 1975 to 1978, as noted above, such disorder
was not diagnosed PTSD and the onset was contemporaneous with
an automobile accident in 1973. Hence, the medical evidence
does not support his assertions that he had PTSD related to
service. In short, no medical opinion or other medical
evidence showing that the Veteran currently has PTSD has been
presented. Rabideau v. Derwinski, 2 Vet. App. at 143.
Nor has the Veteran provide the specifics of his alleged
stressful events in service to enable corroboration of his
alleged stressors. See Zarycki v. Brown, 6 Vet. App. at 91.
(The existence of an event alleged as a stressor that results
in PTSD (though not the adequacy of the alleged event to
cause PTSD) is an adjudicative, not a medical determination).
In this regard, the Veteran response in a September 2005 VA
PTSD questionnaire was merely that "all [his] problems were
from [his] stay in Korea from November 1953 to February
1955". Thus, the Veteran's claim for service connection for
PTSD must be denied.
D. All disabilities
The Board has considered the Veteran's statements, and his
representative's statements on his behalf. The Veteran and
his representative are each competent as a lay person to
report that on which he has personal knowledge. See Layno v.
Brown, 6 Vet. App. 465, 470 (1994). However, the Veteran and
his representative are not competent to offer medical opinion
as to a diagnosis of claimed disability or nexus to service,
as there is no evidence of record that they have specialized
medical knowledge. See Grottveit v. Brown, 5 Vet. App. 91,
93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494
(1992). Consequently, their statements do not constitute
competent medical evidence for the purpose of establishing a
current disability.
For all the foregoing reasons, the claims for service
connection for bilateral hearing loss, tinnitus, residuals of
cold injuries of both feet, and for PTSD must be denied. In
reaching these conclusions, the Board has considered the
benefit-of-the- doubt doctrine; however, in the absence of
any competent evidence to support the claims, that doctrine
is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R.
§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990).
ORDER
Service connection for bilateral hearing loss is denied.
Service connection for tinnitus is denied.
Service connection for residuals of cold injuries, bilateral
feet, is denied.
Service connection for PTSD is denied.
____________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs